IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2013-CA-01158-COA BRIOVARX , LLC, IMPROPERLY NAMED AS MEDFUSION RX

ASCEND PHARMACY, AND CATAMARAN CORPORATION F/K/A CATALYST RX APPELLANTS

v. TRANSCRIPT PHARMACY, INC. APPELLEE

DATE OF JUDGMENT: 07/08/2013 TRIAL JUDGE: HON. W INSTON L. KIDD COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: ALAN M. PURDIE DION JEFFERY SHANLEY ROBERT RICHARDSON BAUGH MICHAEL W . ULMER HUGH RUSTON COMLEY JAIME C. ERDBERG ATTORNEYS FOR APPELLEE: CECIL MAISON HEIDELBERG CHARLES STEPHEN STACK JR. NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE TRIAL COURT DISPOSITION: MOTION TO COMPEL ARBITRATION DENIED DISPOSITION: REVERSED AND REMANDED - 05/05/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND MAX WELL, JJ. MAX WELL, J., FOR THE COURT: ¶1. The circuit court denied BriovaRX’s m otion t o c o m pel arbitration because B riovaRX

was not a party to the arbitration agreem ent it sought to enf orce. But in Mississippi, a nonsignatory can enf

orce a n arbitration agreem ent when the non-signatory m a i ntained a closelegal relationship with the s ignatory to th e agreem ent and the p laintif f has alleged “substantially interdependent a n d concerted m isconduct” between t he non-signatory and signatory

. 1 Here, both conditions w ere m et. BriovaRX is a subsidiary o f Catam aran Corporation, which had entered i nto an agreem ent with Transcript Pharm acy , Inc. This
agreem ent included a broad arbitration clause. W hen y ou couple this with the f act T ranscript had a lleged BriovaRX’s “joint conduct” with Catam aran was th e s o u r c e of its injury , the exception allowing non-signatories to com pel arbitration applied. ¶2. Because we f

ind BriovaRX, though a n on-signatory , had a righ t u nder these circum stances to enf

orce the arbitration agreem ent between Transcript and Catam aran, and because we also f

ind neither BriovaRX nor C atam aran waived the right to arbitrate the new claim s raised in Transcript’s 2012 am ende d c o m p laint, it was error f

or the circuit court to deny BriovaRX’s and Catam aran’s m otions t o c om pel a rbitration. W e reverse and rem and f or the circuit court to grant the m otions to com p el arbitration.
B ackground Facts and Procedural History
I. Initial Lawsuit ¶3. I n t e r e s t i ngly , BriovaRX and Transcript started of f on the s am e side. In 2009, Transcript sued Cataly st RX, the pharm acy -benef its m a n ager f

o r the Mississippi State and School Em

ploy e es’ Lif

e and Health Plan (State Plan), f or dropping Transcript f

rom the State

1 S a w yers v. H errin -G ea r C

h evro let C o
. , 2 6 S o . 3 d 1 0 2 6 , 1 0 3 9 ( ¶ 3 4 ) (M iss. 2 0 1 0 ) (q u o tin g B .C

. R o g ers P o u ltry, In c. v. Wed g ew o r th , 9 1 1 S o . 2 d 4 8 3 , 4 9 2 (¶3 0 ) (M iss. 2 0 0 5 )). 2Plan. 2 T ranscript claim ed that Mississippi’s “any willing p rovider” statute f or pharm acies, Mississippi Code Annotated section 83-9-6 (Rev. 2011), entitled it to participate i n the State Plan. Transcript pray ed f or em ergency and p erm anent injunctive relief

. S e e M i s s. Code
Ann. § 83-9-6(6) (creating a civil action f or i njunctive relief f

or violatio n o f t h i s section).
It a lso sought a declaratory judgm e nt that section 83-9-6 a p p l i e d to the State Plan. Additionally , it requested m o ney dam ages under several tort theories. ¶4. BriovaRX—a specialty pharm acy t hen name d M edf u sion RX—intervened as a sim ilarly situated plaintif

f

. ¶5. Medf

usion RX had entered a sim ilar a greem ent with Cataly st RX as Transcript had.
B o th of t hese agreem ents contained broad arbitration clauses. Rely ing on these clauses , Cataly st R

X m oved to com

pel arbitration. But later Cataly st RX agreed that the declaratory action—which s ought t o r esolve the legal question whether section 83-9-6 applied to the State Plan—should be decided by the circuit court. So Cataly st RX agreed t o withdraw its

m otion to com

pel arbitration. I n exchange, Transcript and Medf usion RX agreed to dism iss their claim s f

or m oney d a m ages. The dism i ssal of these claim s was without prejudice. But Transcript and Medf

u sion RX expressly

assured Cataly st RX that a ny later pursuit of their dam ages claim s would happen in the arbitration f orum . ¶6. The d eclaratory action was resolved in Transcript and M e d f usion RX’s f

avor. In February 2 011, through a grant of partial sum m ary judgm ent, t he circuit c ourt declared the

2 T ran scrip t su ed th e S tate P lan to o . 3any -willing-provider statute applied to the State Plan. W hile it took a y ear, Cataly s t RX had

this judgm ent certif

ied as f i nal and f

iled a n o t i c e of appeal. But that appeal was later withdrawn , o w ing to the f a ct that, in a separate appeal, the Mississippi S uprem e Court

con c l u s i v e l y h eld the any - willing-provider statute entitled willing pharm acies l ike T ranscript
to act as providers to State Plan m em bers. Miss. State & S

ch. Emps’ Life & Health Plan v. KCC, Inc. , 108 So. 3d 932 (Miss. 2013).
II. Corporate Realignm ents ¶7. W h ile that f

irst appeal was pending, several signif i cant events happened. ¶8. First, both Cataly st R X and Medf

u s i o n RX c h anged their nam es and their legal relationship to each other. Af ter a seri e s o f m ergers, Cataly st RX becam e C a tam aran. As part of these corporate changes, Catam aran acquire d Medf usion RX. Catam aran then rebranded Medf

usion RX as BriovaRX. Thus, Catam aran’s once legal f oe on t he other side

o f t h e “v.” b ecam e part of its corporate f am ily , designated as Catam aran’s specialty pharm acy . ¶9. Second, in light of this change, Catam a ran—on Cataly st RX letterhead—m ailed its
custom ers nationwide a l etter inf orm ing them their specialty ph a r m acy w as changing and directing them to call f

o r f urther instructions. Catam aran acknowledges this letter was erroneously sent to m em

bers of the State Plan. Because of the suprem e court’s ruling on the
any -willing-provider question, Transcript lega l l y c o u l d c o n t i n u e t o be the s pecialty pharm acy f or State Plan m em

bers.

4III. Am e nded Com plaint ¶10. W h at Catam aran characterized as a m istake—sending the lett e r to State Plan

m em bers—Transcript called a conspiracy

. As soon a s i t l e a r ned of the Septem ber 2012 letter, Transcript im m ediately m oved to a m end its com plaint. The proposed am ended

com plaint f ocused on the letter, alleging C a tam aran and Transcript’s f orm er ally , B riovaRX f /k/a M edf usion RX, conspired together to s teal T r anscript’s custom ers and that their “joint actions” had harm ed Transcript. Transcript sought m o ney dam ages u n d e r various tort theories—but only against BriovaRX. Transcript was caref ul in i ts p ray er f

o r relief to state
t h a t it was not seeking tort dam ages f r om Catam a r an, but instead j ust injun c t i v e a n d declaratory

relief

. ¶11. In l ight of these n ew allegations, Catam aran renewed its m otion t o com pel arbitration. And while BrioavaRX did not assert the right t o arbitrate in its initial answer to Transcript’s

am ended com

plaint, it soon af

t er f iled a m otion to am end its answer to include an arbitration def ense. It also f

iled a separate m otion to com pel arbitration. ¶12. B o t

h C a t a m a r a n ’s and BriovaRX’s m o tions to com pel a rbitration were heard t o g e t h e r , along with BrioavRX’s m otion to am end its a n s w e r . T h e circuit court denied all three

m otions. The court f

ound Catam aran had waived i ts ri g h t t o c o m pel arbitration by participating thus f

a r in the n o w three-y ear-old l itigation. And the court f ound BriovaRX,

as a t hird-party to the Catam aran/Transcript agreem ent, had no r ight to enf orce t he arbitration clause f ound i n that a greem e nt. A nd because B riovaRX had no right to com pel arbitration,

5there was no reason to allow BriovaRX to ame n d its answer with a f utile assertion of arbitration. ¶13. Because the denial o f a m otion to com pel arbitrati o n i s a f

inal judgm ent conf

erring appellate jurisdiction, Catam aran and B riovaRX im m ediately a ppealed. See, e.g. , W

olgin

v. Experian Info. Solutions, I nc. , 101 So. 3d 1160, 1165-66 (¶16) (Miss. 2 012) (recognizing appellate jurisdiction of the denial of a m otion to com

pel arbitration).
Standard of Review ¶14. The right to com

pel arbitration is a legal q

uestion. Thus, we review t he g rant or denial of a m otion to com

pel a rbitration de novo. Sawyers v. Herrin-Gear Chevrolet Co. , 26 So. 3d 1 026, 1034 ( ¶20) (Miss. 2010). As Mississippi f o llows the f

e deral policy in f

avor of arbitration, w e resolve “ any doubts concerning the scope of arbitrable issues

. . . in f avor of arbitration[ .]” E

ast Taylor, Inc. v. Ford , 826 So. 2d 709, 713 (¶11) (Miss. 2002).

Discussion
I. Enforcem e nt by Non-Signatory ¶15. Transcript draf

t ed its a m ended com

plai nt w ith a n ey e toward avoiding arbitration. Though Catam aran’s a l l e g e d c o n s p i r a t o r i al m i sconduct is integral to Transcript’s various tort theories, Transcript clearly stated it did “not seek m oney dam ages against” Catam aran—only injunctive and de c l a ratory relief

. The claim s f

or m oney dam ages were lodged against Catam aran’s new subsidiary and Trans c r i p t ’ s o l d ally , B riovaRX. 3 N o doubt t his was a

3 T ran scrip t also seek s m o n ey d am a g es f

ro m th e S tate P l an . 6calculated m ove to honor its a g r eem ent (that it would only pursue m oney -dam age claim s

against Catam aran in arbitration) while at the sam e tim e have its day in court. On de novo review, the question we m ust answer is whether Transcript’s strategy worked. ¶16. Unf

ortunately f

o r Trans c r i p t , u

nder these circum s tances, we f ind i t d id not. T ranscript
cannot a void the arbitration clause, even though it h a s only directed the arbitrable claim s against BriovaRX, a nd not Catam a ran. This is b ecause the general rule that a non-signatory

m ay not be bound by an arbitration contract has a “repeatedly r ecog n i z e d ” exception. Sawyers , 26 So. 3d a t 1038 (¶31). “[ A] non-signatory m ay be able to enf o rce an arbitration
agreem ent against a signatory where the non-signatory has a close legal relationship with a signatory of the agreem e nt” and where the plaintif f alleges “ substantially interdependent and concerted m isconduct” between the signatory and non-signatory

. Id. at ( ¶¶31-32) (citations

om itted). ¶17. Both conditions f

or this exception to apply have clearly been m et. Catam aran and BriovaRX are in a close legal r elationship. They are r elated com panies, w i t h B r i o v a RX being the specialty pharm acy of Catam aran. 4 And Transcript’s allegations undoubtedly rest
upon the “substantially interdependent a n d c o n certed m isconduct” o f Catam aran and
B r i o v a R X

. T h e a m ended com

plaint explicitly alleged that Catam aran acted “ i n concert” w it h BriovaRX “in an a ttem

p t to steal Transcript’s patients”; BriovaRX was m isuing Transcript’s

4 W h ile T ran scrip t ap p e a r s to q u estio n th eir relatio n sh ip o n ap p eal, in p arag rap h th irty o f i ts am en d ed co m p lain t, T ran scrip t stated it h ad v erif ied th ro u g h p u b lic reco rd s t h at C a tam aran n o w o w n s B rio v aR X

. 7patient inf

orm ation, which Catam a ran provided to BriovaRX; BriovaRX, the State Plan, and Catam aran have “ con s pired together”; BriovaRX has unf airly prof

ited “f rom the conspiratorial a cts” com m itted with the State Plan and Catam aran; a nd B riovaRX, the State Plan, and C atam aran’s ci v i l c o n s piracy has dam aged T r anscript m onetarily

. Thus, B riovaRX has a right to enf

o rce the arbitration clause in the Catam aran/Transcript agreem e nt. ¶18. Further, the f

act Transcript brings tort claim s and not breach-of -contract claim s against B riovaRX i s a d istinction without a dif f erence, as f

ar as arbitration is concerned.
W h en determ ining the scope of arbitration, we f ocus “on f actual allegations i n the com plaint rather than the legal c auses o f action asserted.” Scruggs v. W yatt , 6 0 So. 3d 758, 766 (¶16) (Miss. 2011) (quoting W

a ste Mgmt., Inc. v. R esiduos Industriales Multiquim, S.A. , 372 F.3d 339, 344 (5th Cir. 2004)). “If the allegations underly ing t hose claim s ‘touch m atters’ covered by the parties’ agreem en t s , t h en those claim s m ust be arbitrated, whatever the legal labels attached to them .” 5 Id. ¶19. Here, the allegations underly ing Transcript’s tort claim s “touch m atters” c overed by the Catam aran/Transcript a greem ent. For exam ple, t h e contract covers how custom er inf orm ation m ay

be used. And the am ended com plaint specif

ically alleges Catam aran and BriovaRX m isused Transcript’s custom er list to gain a n unf air busin e s s advantage. But

5 T h e arb i tratio n clau se in th e C atam aran /T ran scr i p t c o n t ract is b ro a d , co v erin g “[ a] n y co n tro v ersy o r claim arisin g o u t o f o r rela t in g to ” th e ag reem en t. (E m p h asis ad d ed ). With b ro ad arb itratio n clau s es, it is en o u g h th at th e claim s b ro u g h t “to u ch ” m atters in th e ag reem en t. K

u lp a v. O M F in

. L ife In s. , 5 5 8 F . S u p p . 2 d 6 7 6 , 6 8 4 (S .D

. M i ss. 2 0 0 8 ).

8m

uch m ore broadly , Transcript’s allegations o f c o nspiracy and illegal i n t e r f e r ence touch Transcript’s right to operate under the agreem ent itself

. G i ven our d irective to resolve “any doubts concerning the scope of a rbitrable issues

. . . in f avor of a rbitration,” we m ust f ind that Transcript’s new c laim s f

all under the broad, e nf

o rceable arbitration clause

. E a s t T a ylor , 826 So. 2d at 713 (¶11). ¶20. W e are m indf

ul that the rem edy provided to the non-signatory in Sawyers is to be applied “cautiously ” a nd only “to prevent unconscionable r esults.” S awyers , 26 S o . 3d at 1039 (¶35). But j ust a s in Sawyers , we f ind Transcript cannot a void t he arbitration
agreem ent with Catam aran, w hile at the sam e tim e seek m oney dam ages f or B r i ovaRX

a l l e g e d ly conspiring to interf ere with that agreem ent. See id. at (¶34). Under t h e s e circum stances, B riovaRX had a right t o enf orce t he arbitration clause i n the C a t a ma r a n / Transcript agreem ent. II. No Waiver ¶21. W e also f

ind neither BriovaRX nor Catam aran waived the right to arbitrate the new claim s raised in the 2012 am ended com plaint. ¶22. It i s t rue that p articipation in litigation leads t o w aiver o f the right to a r bitrate. See
Lemon D rop Props., LLC v. Pass Marianne, LLC , 73 So. 3d 1131, 1 1 3 5 ( ¶ 1 2

- 1 3 ) (Miss. 2011). It i s also true that Catam aran, as def endant C a taly st R

X, and BriovaRX, as plaintif f Medf usion R X, had participated in the litigation with Transcript f or three y ears b ef

ore f iling their m o tions to arbitrate. But that participation was lim ited, b y a greement , to litigating the

9declaratory -judgm ent action. Back in August 2010, Catam aran o nly withdrew its origin al

m otion to com

pel arbitration so the circuit court could resolve specif ically whether section
83-9-6 applied to the State Plan. And BriovaRX, along with Transcript, conceded that any f uture claim s f

or m oney dam ages should be asserted in the arbitration f orum . ¶23. As this court has previously acknowledged, parties c an agree to arbitrate som e claim s and l itigate o thers. C

f. N obel R eal Estate, Inc. v
. Seder , 101 So. 3d 1 97, 202 (¶19) (Miss. Ct. App. 2012) ( enf

orcing a narrow arbitration clause that agreed to arbitration of som e, but not all, claim s between the parties). Thus, litigating t he purely legal questions—whether section
83-9-6 applies and, i f so, w hether Transcript was entitled to the injunctive relief s ection 83-9- 6(6) af f o rds—did not act as a waiver of other arbitrable claim s. This is especially true here where the allegations underly ing th e a me n d e d c o m plaint rely on events that did not even

occur until Septem

ber 2 012. Catam aran and BriovaRX c annot be deem e d to have waived the arbitration of claim s two y ears bef ore those claim s arose. ¶24. Further, f

or t here to b e waiver of

the right to arbitration, there m ust be detrim ent or prejudice to th e o p p osing p arty

. Lemon Drop P rops. , 73 So. 3d at 1135 (¶12). Here, Transcript has suf

f ered no prejudice as f

a r as the am e n ded c o m plaint is concerned. Catama r a n a s s erted i ts r ight to arbitrate the am ended claim s before Transcript was even
perm itted to f

ile its a m e nded com

plaint. Further, Transcript had literally known f o r y ears of Catam aran’s intent t o s eek arbitration of any f uture claim s besides the declaratory action—especially

any claim s that sought tort dam ages.

1 0¶25. True, B riovaRX did not assert the af f irm ative def

ense of arbitration in its initial

answer. But it quickly sought to a m end its answer bef o re any signif

icant litigation ensued. And it was only denied the requested a m endm ent based on the trial judge’s erroneous belief that BriovaRX cou l d not rely on the arbitration agreem ent between Catam aran and Transcript. Again, f

or participation in litigation t o am ount to waiver, the party opposing arb i t r ation m

ust be prejudiced. And here, Transcript was not prejudiced by BriovaRX’s f ailure to assert arbitration in its original answer. Catam a ran’s m otion t o com pel arbitration was already

pending, and BriovaRX’s m o tion to com pel arbitration soon f

o llowed. ¶26. Theref

ore, the judgm ent deny ing arbitration i s reversed, and this case is r em anded f or the circuit court to grant the m otions t o com pe l a r b i t ration of all counts in t he am ended

com plaint seeking m oney

dam ages. ¶27. THE J U DGMENT OF THE H I N D S COUNTY CIRCUIT COURT IS REVERSED, AND THIS C ASE IS REMANDED FOR THE CIRCUIT C O U R T TO COMPEL A RBITRATION. ALL COSTS OF THIS APPEAL A R E A S SESSED TO THE APPELLEE. LEE, C .J., G RIFFIS, P.J., BARNES, I S HEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., C ONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

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